Public Bill Committee

[Derek Conwayin the Chair]

Further written evidence to be reported to the House

H&SC 21 Commission for Social Care Inspection
H&SC 22 Geoffrey Crittenden
H&SC 23 BLISS
H&SC 24 Which?
H&SC 25 Local Government Association

Derek Conway: Good morning. Before we start, I would like to inform the Committee about arrangements for this afternoon. Members will have noticed that there is a debate on the Floor of the House on a Ways and Means resolution relating to the Bill, which will start at the beginning of public business. Mr. Hood and I propose that the Committee resume its consideration 10 minutes after the conclusion of the debate and any Division. If the Committee is content with that, it seems a sensible way forward.

Stephen O'Brien: On a point of order, Mr. Conway. When we resume 10 minutes after the debate—at whatever time that is, depending on whether there is a statement—will we have the same amount of time that we would have had: in other words, will the time be effectively sheared, not truncated?

Derek Conway: We do not know when the Ways and Means resolution will be taken this afternoon. The ten-minute Bill may be divided on or there may be Government statements—it is beyond the control of the Committee. On when the Committee adjourns this evening, as there is no knife set for today it will be for the Government Whip to move the Adjournment, and I am sure that that will be discussed in the usual way. If the Committee sits very late, it remains within the power of the Chairman to suspend for a break, but the Committee itself will decide when to adjourn.

Clause 2

The Commission’s functions

Stephen O'Brien: I beg to move amendment No. 3, in clause 2, page 2, line 21, at beginning insert
“without prejudice to the activity and independence of the Commission”.

Derek Conway: With this we may discuss the following amendments: No. 4, in clause 2, page 2, line 22, leave out “direct” and insert “advise”.
No. 5, in clause 2, page 2, line 22, at end insert
“4(A) The Commission shall not be bound by advice given under subsection (4).”.

Stephen O'Brien: It is a pleasure to resume our proceedings under your chairmanship, Mr. Conway. Amendments Nos. 3, 4 and 5 to clause 2 make up a crucial area of consideration. Members across the Committee will recognise that the clause establishes the vital principle as to whether the Care Quality Commission will be, in mind and spirit as well as the letter of the law, truly independent as a Government body, or whether it will effectively be a creature of Government and feel that it owes its fealty to the Government and Ministers.
For the convenience of the Committee, I will address all three amendments collectively as they apply to the same point, and I ask members of the Committee to look at the way that they work. The focus should be on amendment No. 4, which seeks to leave out the word “direct”, and insert “advise”. It means that clause 2(4) would read:
“In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may advise”,
rather than “direct”.
I am sure that everybody recognises that there is a massive difference, in terms of independence, between being directed to do something and being advised about the Government’s view and what they would like to see done. The latter leaves genuine discretion for an autonomous body to arrive at its own view independently, and to be accountable for the decisions that it makes. I hope that in taking the amendments together, they will be seen somewhat holistically, although the emphasis is on amendment No. 4 for this purpose.
The debate on independence relates not just to the CQC; it is threaded throughout the Bill, and the background shows that the Government have power over appointments, reviews, direction, funding and the secondary legislation concerning this so-called independent regulator. The Government’s unwillingness in this regard is obvious, and we need to tease out from the Minister why they are unwilling for the Bill to set out a general function for the regulator—or, indeed, to consider the patient voice—yet they have set out their own power of control over the regulator. We clearly have as best a clue as we can get as to the mind of the Government. They intend to ensure that prescribing their power over the regulator is set out in the Bill, but not the general functions for the regulator. Nor is consideration given to the patient voice—an issue that has been of vital interest throughout the House for many years, and which has been the subject of amendments tabled by Conservative, as well as Liberal Democrat, Members. I hope that the Government will listen carefully to my arguments and not take it amiss when I say that they seem unsure of themselves. It is baffling how they have come to be in such a position in respect of independence for the NHS and its associated bodies.
In his widely reported personal new year message to the NHS, the Prime Minister said:
“We will also examine how all these changes can be enshrined in a new constitution of the NHS setting out for the first time the rights and responsibilities associated with an entitlement to NHS care.”
I am sure that Members will recall that that was said on 1 January this year. However, in the society section of The Guardian on 7 January, the Secretary of State for Health, the Minister’s immediate boss, submitted that the constitution will not enshrine the rights of patients. The newspaper reported:
“Johnson discloses that he does not want the constitution to be enshrined in legislation. That could give patients rights they might seek to uphold in court. ‘I don’t want the constitution to give lots of work to the lawyers so that the NHS spends more time in court and less on treating people’, he says.”
It would be difficult for any of us to disagree with that, but it flies in the face of precisely what the Prime Minister said on 1 January.
The relevance of this issue goes to the heart of what is truly intended to be the definition of independence, as structured by way of statute, that we are contemplating while discussing the amendment. We want to make sure that we understand how the Government can get away from feeling that they must have the power to intervene and meddle, without giving corresponding protection to the independence and autonomy of the body that they want to create under the Bill.
In her evidence, Dame Denise Platt said:
“We think that the independence should be clear. The body should have the opportunity to think, initiate and comment and to be accountable to Parliament for what it does...I am not sure that the Bill presents that sort of independence. There are a lot of references to ‘with the agreement of the Secretary of State’.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 14.]
That comment came out of a situation that is the reverse of what is happening now, which is that the Care Quality Commission should not have to seek the agreement of the Secretary of State before undertaking special reviews. We shall come to that later in the Bill.
To make sure that I am making myself absolutely clear, I shall highlight the best example of special reviews, which has been already cited in Committee. The old community health councils, which were independent and had authoritative power, respect and trust, used to amalgamate collectively evidence from all their various inspections in order to publish their bedwatch report. It meant that people knew whether we had the capacity and whether the beds were available. The report was trusted because it was independent, and it is clearly the sort of thing that we have in mind to ensure independence from the Government.
Let us consider what would happen if, under the power to “direct” rather than “advise”, a Government did not like the fact that some valid, truthful, evidence-based revelations or comments came out about certain aspects of the health or social care settings at an inconvenient moment, perhaps in the run-up to local elections. It surely would not be in the best interests of the patients if the Government could use clause 2(4) to direct that the CQC was not in a position to publish what it might wish to publish, or to initiate what it might wish to initiate. That goes to the heart of whether we are dealing with an intention to establish an independent body, or whether this is just a cloak for trying to manage bad news, from a Government who do not want to be criticised.
I hope that the Committee will take its role seriously, and that it looks at its proper scrutiny function as a Committee in challenging the Government. I hope that I can appeal beyond the normal partisanship and ask Government members of the Committee to give serious consideration to what is truly meant by independence, given that that is what is proclaimed and given the experiences that we have all had, as Members. Trust and confidence in these areas is dependent on whether the body being created is independent of the direction of the Secretary of State and his Ministers.
Having quoted Dame Denise Platt’s forceful comment in the evidence sessions, at which we were all present, I find it interesting to note that while she said that the CQC should not have to seek the agreement of the Secretary of State before undertaking special reviews, the converse is also true. The Secretary of State should not be able to direct the limited resources of the CQC to a particular issue—let us call it issue X—that may be in the political interests of the Secretary of State. I doubt whether any Labour member of the Committee would particularly welcome that if there were a change of Government and, therefore, a Secretary of State in the cause of a Conservative Government. I imagine that in those circumstances, they would make equal criticism of the concept of that possibility.
Equally, the converse is true when the commission believes that it should look at issue Y, and that it is more in the interests of patients, service users and health and social care practitioners than the Government perhaps want the CQC to emphasise. The regulator should be driven by the needs of health and social care services staff, patients and users, not by the exigencies of political life. Despite the fact that we are all political animals and partisan in many ways, surely each and every member of the Committee recognises that that would be a wholly irresponsible way to proceed in order to promote the exigencies of party political life. With such power in the hands of the Secretary of State through the Bill, the temptation to misdirect or meddle with the work of the regulator for a particular political gain is high. We are in danger of passing a law that could give a licence to that political gain judgment, which, I am sure, taking our duties responsibly, is inevitably something that we would all wish to avoid.
In its submission, the Healthcare Commission—it was speaking to clause 41, but the point is wholly relevant here—stated that
“there is a risk of conflict with the independence that the Bill envisages for the regulator.”
In addition, it does not think that
“the Government should determine operational priorities for an independent regulator.”
Clause 2(4) effectively gives the Secretary of State that ongoing power. Perhaps the Minister will stand up shortly and say that the word “direct” is intended only to indicate the broad thrust of what the Government want to see done. That is not what the Bill states. Anybody thinking correctly would be minded to think that “direct” means to direct right down to the level of operations.
We have all had various examples, going back 20 or 30 years in all of our political memories, as to whether “direct by a Secretary of State or a Minister” would include, for instance, the recommendation or direction that somebody at the top of an organisation that is intended to be an independent, arm’s length or a non-governmental departmental body should be sacked. Should we continue with the wording in the Bill, there is nothing to stop the Secretary of State from directing that the CQC should sack somebody.
Does any member of the Committee think that that is the right way to proceed? Does anybody think that the operational meddling that that would entail, let alone the political backlash that would no doubt follow from it, would be at all appropriate? Should members of the Committee allow that measure to pass through? 
I appeal particularly to those on the Government Benches to give the issue the serious consideration required. We are dealing with the essential element of trust. It is not just that we are talking about trust in general, which would be appropriate for a Second Reading debate. Clause 2(4) uses the precise words “may direct”. I am not persuaded by the use of “may”—and the argument that, in other words, the Secretary of State may not—because the truth is the clause gives the Government the power and that is what they want. We need to ensure that the Government’s powers are properly checked. That is our duty and the amendment gives us the opportunity to ensure that the clause refers to advice rather than direction.
Let me be blunt: people remain suspicious, and it is not just me—perhaps it is inevitable that as representatives of political parties we have a political view on the matter—but many people in the health and social care field. When preparing for the Committee, those people have said that they fear, and feel, that Ministers have perhaps concluded that they will find it more convenient if criticism of anything to do with the NHS and the social care field is effectively shot down. They have also said that the Government used to feel they had a monopoly or some kind of political purchase on those matters and that is now shifting. Whether or not that is true, it is wrong for us to enable people to feel that they should distrust Government to that degree. The wording of the clause would clearly perpetuate that belief. Therefore, I hope that the Minister will seriously consider the amendment.
I also note that the covering letter of the Healthcare Commission’s submission states that the
“regulator should play a central role as an independent provider of reliable information allowing for local and national comparisons to support decision-making by patients, commissioners, providers and Government”.
I think that everyone would say, “Hear, hear” to that. However, we would be concerned if authoritative, independent and trustworthy information were provided on the bedwatch scheme, for example, and the Secretary of State suddenly directed the CQC to have regard to the aspects of Government policy that he or she—it may be a she in future—wishes it to. It may be that the Secretary of State does not want certain types of evidence to be put into the public domain at a particular time and that he or she can issue a direction to shut the CQC up. In terms of democratic accountability that is inappropriate.
If the Secretary of State said, “Look, I advise that it would be very unhelpful to put such information into the public domain and you ought to reflect whether this is an appropriate moment to do so”, I am sure that the fact that the Secretary of State picked up the phone to say that to the head of the CQC would have a powerful effect. Whoever is the head of the CQC is bound to listen carefully to the Secretary of State, but it should at least be the chairman of the CQC’s decision whether or not the Secretary of State is making a valid point that is appropriate. It should also be their decision whether it is in the public interest to withhold information rather than being simply commanded to do so from on high because it is politically expedient.
I seriously hope that the Committee does not think that we are having yet another rather indulgent debate along party lines. This issue goes to the very heart of our duties as Members of Parliament, and many people from outside—I recognise that Committee proceedings are not heavily reported in the outside world—think that the issues of trust and independence do have traction. I hope that each and every Member will think seriously about the amendment and come to a favourable decision.
During the oral evidence session that was held earlier in the Committee’s proceedings, the Minister left hanging the question. He said:
“there may be an inconsistency between their desire”—
the witnesses—
“for more prescriptiveness on the face of the Bill and their desire for the new commission to be flexible and independent”.
I think that we understand that and are sympathetic to it. Anna Walker from the Healthcare Commission immediately responded to that point, saying:
“In certain instances, we do not believe that framework is right yet.”——[Official Report, Health and Social Care Public Bill Committee, 8 Jan 2008; c. 12-13.]
A stronger statement of purpose supported by the main stakeholders and Parliament would not constrain the new commission, but it would constrain the invasive power of the Secretary of State. The amendment would avoid the Secretary of State being over-prescriptive, which is the very sentiment that the Minister tried to assert in his oral evidence, but from the point of view of the creature created by the Bill—the CQC—having that set of prescriptions placed upon it.
Let us avoid throwing stones in glasshouses and ensure that the Minister is aware that it is incumbent on Government to live up to the evidence and phraseology that he used in his own oral evidence during the Committee’s first sessions. The Minister is confusing independence, which is necessarily defined in relation to other bodies, with freedom. While the commission should be given the necessary freedoms to determine the scope and nature of its regulation, it is our job, as parliamentarians to prescribe the limit within that scope—a point that the Minister has hinted that he will make when we come to the discussion on cosmetic treatment. I know that Liberal Democrat Members are also concerned about that. I dare say that he might already have thought about the amendments on cosmetic treatment and surgery, and might have already decided to reflect them in separate changes. We will wait and see.
Dame Denise Platt, from the Commission for Social Care Inspection, also noted in her oral evidence that, while leaving everything to regulation is the ultimate flexibility, it is also the ultimate straitjacket, because it depends on how the Secretary of State frames the legislation. That is the nub of the issue. There is no way that we can be assured that the Secretary of State will not be the ultimate prescriber, while he retains the power to direct. We are looking here at the vital and fundamental question of whether the Bill is a genuine one that is going to deliver on what it proposes, or whether it is effectively a prescription by Government, laid upon the bodies that it creates as ostensibly independent, which will come under the potentially great clunking fist of this Government.
The Minister was very occupied with ensuring
“democratic—that is, public—accountability the more distant an independent body is from any governmental oversight or control.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 49, Q96.]
That point was made with reference to the Office of the Health Professions Adjudicator in part 2, but the principle and sentiment are relevant to the Care Quality Commission in part 1. Given the weakness in the clause of any direct appeal to groups within the demos, it would be a difficult point for the Minister to contend. Is he unhappy with democratic accountability stemming from Parliament? Democratic accountability, in some terms, is the measure at the ballot box of the independent bodies that the Government have set in motion. We can draw on the example of the independence of the Bank of England, which the Government have always been proud of. Let us use the very independence that they have sensibly proclaimed as their best model here as well. Why not?
The Minister may want to show his good intentions this morning—I very much hope that he does—and the recognition of the value of true independence by withdrawing the subsection. We have made it clear that this is an important debate, and I hope that all members of the Committee will now feel that they can spend the rest of the morning debating the issue, as it is vital to the Bill. I am perfectly happy to work hard and to stay as late as necessary. The important point is to flush out whether everyone is truly in agreement with this, or realises that some fundamental issues are at stake for us all. The Minister has, therefore, a number of questions, which I shall briefly set out, and that will be the way to get the debate genuinely in front of him. 
Why is the Minister unwilling to grant full independence to so many of the bodies in the Bill, not least the CQC? Does he agree with the Prime Minister that independence should be achieved by enshrining a new constitution for the NHS, or does he agree with the Secretary of State for Health, who does not want such a constitution enshrined in legislation? What assessment has the Minister made of the concerns of the Healthcare Commission and the Commission for Social Care Inspection that the Bill does not provide the necessary independence? What impact on public faith in the regulator does the unfettered residual power of the Secretary of State over the commission have? It is unfettered under the clause. Does the Minister agree that a closer bind on both the extent and the content of the Secretary of State’s secondary legislative powers actually constitutes greater, not less, independence for the commission? Can democratic accountability come only when a body is not independent of Government, and consequently, party politics? What guarantees can he give that clause 2(4), as currently drafted, will not lead his Secretary of State, and future Secretaries of State of any party, to direct the commission according to political expediency?
With these amendments, particularly amendment No. 4, we have a real opportunity to improve the Bill, to improve and make clear the Government’s intent, and above all, to give truth and earnestness to what the Prime Minister proclaimed on 1 January.

Greg Mulholland: There is concern about the clause, as I am sure that the Minster will accept, and about the fact that it appears to some, including Opposition Members in the Committee, to diminish the independence of the Care Quality Commission, when compared to the current situation with the three regulators. That is the key point, and the Minister needs to justify why we are moving away from the current situation, which is generally regarded as working well and where the three current regulators are clearly recognised as independent of the Secretary of State and the Department of Health.
The Minister will also recognise that to have the genuine confidence of Members in the House, the medical profession and, most importantly, patients and the general public, the new Care Quality Commission must be seen as a truly independent regulator. That is what we want to hear in this debate because, as he is aware, people feel that we are moving towards a system of having more of an arm’s length regulator.
There is a lot of concern about the word “direct”, and that is the substance of the debate on amendment No. 4. “Direct” is a prescriptive word and, certainly among Members on the Opposition Benches in the Committee, causes some concern. What does “direct” mean? What powers does it give the Secretary of State? Will there be a situation in which the work of the Care Quality Commission can be affected, directly or indirectly, by Ministers or Department officials? It seems sensible for clause 2 to lay out the clear functions, powers and role of the new Care Quality Commission, and to enshrine the clear independence of the new body that is essential to its working. The Minister must do a convincing job. Opposition Members are minded to support the amendment, and we look forward to hearing what the Minister has to say.

Kelvin Hopkins: My concern about the amendment is that it puts a distance not only between the Government and the sector but between Parliament and the sector. I am concerned about the democratic input. For example, if the commission were seen to be more sympathetic to the private care sector than I thought appropriate, I would want Parliament and MPs to have much more say in what happens. If it is entirely independent, the Government can wash their hands; if it is not independent, the Government are still accountable to Parliament. Accountability to Parliament has not been as strong as it should have been in recent years, and I am looking forward to a much stronger input from the legislature rather than the Executive.
An analogy has been made with the independence of the Bank of England—I am one of those people who were deeply sceptical about the idea in the first place, and I apologise to my hon. Friends who might take a different view. However, I am sceptical, and I believe that if, for example, the Monetary Policy Committee started to diverge strongly from what the Government wish on interest rates, the Government would quickly make it less independent, and could effectively take back control at short notice.

Stephen O'Brien: I understand the hon. Gentleman’s point, but does he feel—using the example of the Bank of England, which is a sensible and useful analogy—that it is appropriate and right for the Government to seek to take back the powers because of the exigencies of a particular set of circumstances or declared behaviour? Alternatively, as most would agree, should they look more carefully and rigorously at the remit, and at what is within their powers and what is not, particularly when trying to meet a range of inflation goals?

Kelvin Hopkins: I thank the hon. Gentleman for his intervention, but I believe that the Government should be accountable to elected Members. The more distant these important bodies become from Parliament, not just Government, the less democratic input there will be. On the Monetary Policy Committee the Government, even now, have the right of appointment and they are careful about whether they appoint hawks or doves to the committee to ensure that they get the right kind of answers. This much vaunted independence is not anything like as independent as we would like to think. I am expressing doubts, I am not necessarily condemning the amendment outright, but I want to ensure that parliamentary accountability is retained and that ultimately, we can have a say, as Members on behalf of the people who elected us.

Ben Bradshaw: The Government stand accused of confusion on this issue, but I suggest that it is the hon. Member for Eddisbury who is confusing two things: his party’s express desire to set up a new, big, bureaucratic, unelected and unaccountable national quango to run the NHS—although if one believes recent press reports, his leader is about to flip-flop on that policy as well—and the desire that we all share for a robust, strong and independent regulator of health and social care. I also remind him that there was no independent regulation of the NHS before this Government introduced a system in 1999. The Government are committed, through the Bill, to making that system not only more robust, but even more independent.
I will quote from the existing legislation. The wording that we use in the clause is exactly the same as the existing wording in the legislation. I do not think that any hon. Member has so far suggested that either the Healthcare Commission or the CSCI is not independent enough. Section 130(1) of the Health and Social Care (Community Health and Standards) Act 2003 states:
“In exercising any of its functions the CHAI must have regard to such aspects of government policy as the Secretary of State may direct.”
Section 131(1) states:
“In exercising any of its functions the CSCI must have regard to such aspects of government policy as the Secretary of State may direct.”
That is exactly the same wording that we are using in the Bill. I also note that at an evidence taking session, Anna Walker talked about the freedoms to conduct general reviews. She said:
“The Bill, in a very welcome way, has a power to carry out investigations, and we have carried out a number of significant investigations”.——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 17, Q25.]
The point that she went on to make was not about any restrictions to the CQC’s freedoms to conduct reviews or investigations but was about her concern that those reviews and investigations should be able to cover commissioning as well as provision. That is a view with which I have considerable sympathy and I think that the Bill addresses it, but we will no doubt debate that in another place. Her concern was not about freedom to act independently, but the remit and the scope of that freedom to cover commissioning as well as provision.

Stephen O'Brien: Does the Minister therefore recognise that the Secretary of State would have the power, under the clause, to prevent the commission from publishing anything that it had initiated?

Ben Bradshaw: Absolutely not. I do not accept that whatsoever. The power written into the Bill is exactly the same in the current legislation, which is “must have regard to” and “may”. That does not mean to say that the independent commission has to obey diktats from the centre; on the contrary, that would be against everything that the Government have stood for since we introduced independent regulation in the first place. As I said, the power as drafted does not mean that a Secretary of State is either obliged to direct the commission to take account of Government policy, or that the commission would have to obey diktats. However, it would allow the Secretary of State, as the existing legislation does, to ensure that the independent commission operates within the context of Government policy.
I will take the example of the NHS, a health system with massive policy input—unlike the Opposition, we do not believe that it should be run by an unaccountable, unelected independent quango. In carrying out its work, it would be inappropriate for the commission not to have regard to the nature of the NHS and the demands placed on the public, both directly and through the political process. Clause 2(4) provides the opportunity for the Secretary of State to require the commission to take into account key policy areas when undertaking its functions. It is important that the various demands of a system that is spending more than £100 million of taxpayers’ money a year are accountable in that way. It is a sensible precaution to ensure that the public have faith in the accountability of both the system and the inspection system, and that it is not undermined by confusion.

Jeremy Wright: Given that subsection (3) sets out a list of other matters to which the commission must also have regard, including
“views expressed by members of the public”
and the level of satisfaction of members of the public, does the Minister really need subsection (4) to reinforce that point? Furthermore, does he think that it is right for the commission to have equal regard, according to the Bill, to those matters set out in subsection (3) and the Government’s policy under subsection (4)?

Ben Bradshaw: The hon. Gentleman makes the point that I was about to make in response to the hon. Member for Eddisbury. Although not strictly related to the amendments, the hon. Member for Eddisbury made reference to involving the public and their views. The hon. Member for Rugby and Kenilworth has now helpfully drawn the Committee’s attention to the fact that those issues are included in the functions, as is the importance of the new commission having regard to aspects of the Government’s policy. That is nothing new and is nothing that will compromise the independent action of the Healthcare Commission. As the hon. Member for Eddisbury took some time in speaking to the amendments, it might be helpful if I remind the Committee exactly in which ways the commission will be independent and is at the moment.
The new commission must determine the criteria that provide access for compliance with all registration requirements; it must decide whether services meet those requirements and it must determine what action is necessary. It will also have to establish its organisational structures to determine what committees it requires and to develop the performance assessment criteria, and a whole range of responsibilities that the existing Healthcare Commission carries out excellently and completely independently of the Government.

Angela Browning: I wish to give the Minister an example of when the two issues come into conflict. Subsection (3)(a) refers to
“views expressed by members of the public about activities to which the functions relate”.
I endorse the current view of the public from personal casework concerning very elderly people who are transferred from a general hospital to a small community hospital. They are clearly at the end of their life and, in some cases, relatives have been told that the patients will die within a week or two. However, relatives are still asked to move the patients out of the community hospital and to find a nursing home for them. I share the strong public view that is held about that.
If the commission thinks that that approach is inappropriate having listened to the views of the public, but, as seems to be the case, the Secretary of State deems under subsection (4) that people must be moved on quickly, we immediately have a conflict of interests in an area where the commission is perhaps best placed to know what is the appropriate process to follow.

Ben Bradshaw: The commission will be entirely free to launch an investigation into anything that it considers is jeopardising public safety or quality of care and, if necessary, to launch a broader investigation into such matters. I must say to the hon. Lady that it would be surprising if the Government were deliberately pursuing a policy that put people’s safety and lives at risk. If the Healthcare Commission thought that that was the case from evidence based on the ground, it is absolutely clear from the Bill that it would be entirely free to investigate matters. The two priorities that we are giving the Care Quality Commission are the protection of patients’ safety and the quality of care.

Angela Browning: The example that I have just cited is not about putting patients’ lives at risk, but taking a humanitarian approach to people in their final weeks at the end of their lives. Criteria in respect of putting people’s lives in jeopardy would not apply, but what does kick in under my example is money.

Ben Bradshaw: I beg the hon. Lady’s pardon, but what she suggested seemed to lead to what I said.

Angela Browning: No.

Ben Bradshaw: Well, the issue to which the hon. Lady referred would still come under the auspices of the quality of care, if not the safety of care. It would also come under the function outlined in subsection (3)(d) on vulnerable adults. If the people to whom she referred are elderly and sick, they are by definition vulnerable.
The clause is important to ensure that the commission does not place competing unfair or contradictory expectations on providers of health and social care services. While there is no obligation on the Secretary of State to make use of the clause, having it available under existing legislation will ensure that the commission considers the policy context when carrying out its functions. I therefore ask the hon. Gentleman to withdraw the amendment.

Stephen O'Brien: Along with other members of the Committee, I have listened carefully to the Minister. He seems to agree with his Secretary of State, rather than the Prime Minister, about what should be enshrined as the rights and responsibilities of the NHS and has thus not dealt with the issue raised by my hon. Friend the Member for Rugby and Kenilworth who, having gone through the various provisions under subsection (3), did not receive an answer about why the Government still needed subsection (4). Having sought to pray in aid subsection 3(d) as a defence to why he would not commit his Secretary of State to using the powers granted under subsection (4) in response to my hon. Friend the Member for Tiverton and Honiton, he said without much of an argument in support that subsection (4) would not be used to send out a diktat to the CQC.
The Minister might say that now, but the rest of the world will not have been listening to our proceedings and will not necessarily know what has been said. What they will do is to read the words set out in the Bill. However much he prays in aid that such words were used in the precursors, our job is to look at the words as published in the Bill. The hon. Gentleman’s answer was wholly unsatisfactory. It leaves the Secretary of State with the power to issue those diktats in the particular circumstances outlined by my hon. Friend the Member for Tiverton and Honiton. I want to press the amendment to a Division.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Amendment proposed: No. 4, in clause 2, page 2, line 22, leave out ‘direct’ and insert ‘advise’.—[Mr. O'Brien.]

The Committee divided: Ayes 7, Noes 10.

Question accordingly negatived.

Stephen O'Brien: I beg to move amendment No. 6, in clause 2, page 2, line 28, leave out paragraph (c).
We move amendment No. 6, given that amendment No. 5 depended upon amendment No. 4 being carried, and I do not want to press that further. In clause 2(5), amendment No. 6 seeks to divest the CQC of its function of economic regulation. It may help the Committee if I draw attention to the fact that the amendments to clause 50 would relocate that role to Monitor, an existing body that already has the necessary expertise and practice. Those who remember the programming sub-committee will recall that we had hoped that Monitor would be able to give evidence during the oral evidence sessions. The Government chose not to take up that suggestion, but here is where it would have been relevant for our considerations.
Economic regulation covers all aspects of the operation of the social market. An economic regulator needs to possess substantial powers to intervene in order to determine service reconfiguration and the management of NHS trusts and to decide how service requirements must be met. A quality inspector needs to report openly and frankly on the quality of services provided. There is a tension between the two: the need to drive efficiency from an economic point of view may conflict with the need to warn about the potential of declining standards of care from a quality perspective. Oddly enough, the example that my hon. Friend the Member for Tiverton and Honiton gave in the last group would be a good example to bear in mind as we look at that tension.
For example, the economic regulator may sanction the rationalisation of a trust’s estate from two sites to one. That is something we can all imagine, as we often face testing decisions in our constituencies. However, that may be detrimental from a quality perspective. If the two regulatory functions are combined, there is a risk that one side of the argument will be lost, and such conflicts of interest will make a regulatory regime, in which economic regulation and quality inspection are combined, unsustainable. The amendment gives rise to the opportunity for those two functions to remain separate, as indeed they are, with Monitor, highly qualified and well experienced, taking the role of economic regulation, and the CQC functioning as a quality and value for money inspectorate.

Ben Bradshaw: As the hon. Gentleman acknowledges, the amendment originates in his party’s desire massively to extend the powers of Monitor beyond its current role as champion and partial regulator of foundation trusts to being the economic regulator for the whole health and social care system. It is rather like his idea of an independent quango to run the NHS and we think that there are fundamental flaws in that idea because of the potential massive conflict of interest.
The amendment suggests that the new commission has or should have no interest in trying to ensure that care services are delivered efficiently and effectively, which is a surprising position for the Conservatives to take. We believe that quality of provision is maximised when services are provided efficiently and effectively. The annual health check of hospital performance published by the Healthcare Commission shows a strong correlation between high performance on the quality of care and high performance on financial management. We think that it is important for the new independent commission to carry over the responsibilities that the Healthcare Commission and CSCI currently have to ensure effective and efficient delivery of services.

Kelvin Hopkins: I want to make the simple point that if resources are used more efficiently, that will provide resources for putting on a better service rather than simply saving public money.

Ben Bradshaw: My hon. Friend is absolutely right. There is a strong correlation between hospitals that are well managed financially and a high quality of service. Clearly, if a hospital is badly managed financially and lurching from one financial crisis to another with a boom-and-bust approach, patients suffer. That is why it is important that the new independent CQC retains responsibility and why we are not in favour of the massive expansion of the empire of Monitor.

Derek Conway: Angela Rumbold.

Angela Browning: Browning.

Derek Conway: I apologise.

Angela Browning: It is a pleasure to serve under your chairmanship, Mr. Conway. We have something in common—the occasional senior moment.
The Minister’s remarks focused on the NHS, but social and, particularly, residential care are within the scope of the Bill. I am concerned about that focus, because a big problem in residential care is that it is common practice for many people who require residential care to be placed by social services in homes that are really suitable only for residential, as opposed to nursing, care. Nursing patients are often placed in residential care homes purely on the ground of cost. Many private residential care homes have reluctantly taken such patients because their arms have been twisted by social services departments, which then pay a residential rate for what is ostensibly nursing care. One difficulty, which is being reversed by the closure of many private homes, has been that residential homes have reluctantly taken such people purely to fill their beds. The economics are somewhat questionable for them, and it is surely not acceptable for the resident. That is a different matter from the Minister’s points about the NHS.

Sandra Gidley: I am listening to the hon. Lady with interest, because I was fairly persuaded by the Minister’s points about health. Will she extend her argument to include the treatment of the elderly mentally infirm, for whom local authorities struggle to find places in appropriate settings? They are often put in a home that, although it may be a nursing home, does not have the expertise and may be cheaper.

Angela Browning: The hon. Lady has touched on a subject dear to my heart. She mentions the elderly infirm with added mental health disorders in residential care. With old age comes dementia on a much wider scale and when somebody’s mental health deteriorates, particularly in that way, relatives or social services are often asked to move them to more appropriate settings, of which there are a shortage. Even worse, it is common practice to medicate those people in such a way that they become controllable in a different environment, which is outrageous. The over-prescription of drugs in such situations needs seriously to be examined.

Jeremy Wright: My hon. Friend will know that the all-party group on dementia, which I chair, is investigating precisely that subject. Does she accept that, because of the shortage of places for elderly people with mental infirmity, some people are in places that are not technically defined as suitable for the elderly mentally infirm, but they and their families are happy for them to be there? Their condition might deteriorate if they were moved into an unfamiliar environment.

Angela Browning: Exactly so, and my hon. Friend’s work with the all-party group has helped to highlight issues that are hidden below the surface but extremely important. In responding to the submission on the clause by my hon. Friend the Member for Eddisbury, I am making the point to the Minister that the Bill applies to social care as well as health. I hope he will reflect on that because there are different issues that come into play and the clause tabled by my hon. Friend seeks to address the whole Bill, not just part of it.

Stephen O'Brien: I am tempted to find a way of helping the Minister intervene so he can confirm the point just made and say whether he also agrees that the Bill extends fully to social care settings and health care settings.

Ben Bradshaw: I am happy to answer that. I thought that I had made it clear in my remarks that the existing legislative framework will do exactly the same. There is a duty on the CSCI, as there is on the Healthcare Commission, to be concerned with economy and efficiency. That is exactly what we are taking forward in the legislation.

Stephen O'Brien: I am grateful to the Minister for confirming that. At the heart of the matter is the importance of recognising that although the Healthcare Commission covers both aspects of regulation, Monitor covers only economic aspects. When moving forward, it will be absolutely vital that we have an understanding of the different pressures and potential conflicts of interests that may arise. We have introduced a proposal that we think will work, but given that we will revert to this matter when we get to clause 50, it would be disproportionate to press the amendment to a vote at this time. It has been a useful exploration of the issue and I hope that when we get to clause 50 sometime soon, we will be able to see whether the Minister has had a chance to reflect on the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 77, in clause 2, page 2, line 29, at end add—
‘(6) Where, in the course of performing its functions, the Commission becomes aware of substantial risks to the dignity, rights or welfare of any individual affected by the failure of a service to comply with regulations, the Commission shall ensure that any necessary action is taken to safeguard that individual, and to support them in taking action to safeguard their own dignity, rights and welfare.’.
The amendment seeks to strengthen what a number of organisations have called a rights-based approach to the CQC and its responsiveness to warning signals. To some degree, the amendment is a more generic way of looking at a rights-based approach than some of the more specific amendments that originated in the private Member’s Bill on the human rights application in certain social care settings. The amendment is core to that debate. I know that the hon. Member for Luton, North has dedicated himself to understanding the issues surrounding the rights-based approach. I hope that the amendment commends itself to him because it effectively maintains the current powers of CSCI within the new CQC. That is vital, because on the basis of how the Bill is currently drafted, there is concern that the powers enjoyed by CSCI will be diminished on the arrival of the CQC.
It is likely that in the course of investigations about non-compliance with regulations, the regulator will encounter situations in which there are risks to the rights and welfare of specific individuals. The Bill should clarify the duties of the regulator to take action to safeguard and promote the rights and welfare of children and vulnerable adults under the circumstances that patently fall within the ambit of clause 2(3)(d). Age Concern sets a good example by supporting the amendment and proposes the addition of a duty to investigate when the commission suspects an individual is at risk. As I have said, Age Concern supports the amendment and I pay tribute to its assistance in drafting it. The recent cases of deaths at Parkfields residential home in Butleigh, Somerset, is an example of CSCI using the power to investigate. The couple in that case were accused of murdering five residents and CSCI used that power, although a bit late. One resident died and CSCI saw what it thought was a substantial risk and did a snap inspection, following which it applied for an order and closed the home. The other people who died did so before that action was taken.
Ideally, such a function in the commission would be supported by an effective complaints procedure and body, which would flag up potential problems through that process. We will find that there are other opportunities throughout the Bill to debate that in more depth. Does the Minister agree that this has been a useful power for CSCI, given what is a pretty powerful example? Does he expect that power to carry over into the CQC? We cannot find that in the Bill. I hope that agrees that subsection (6), by virtue of the amendment, is a helpful and constructive approach to a problem that he said that the Bill aims to address.

Greg Mulholland: There appears to be a need to clarify the duty of intervention that the new CQC will have when it suspects that an individual or individuals are at risk, and the amendment is useful for that. As we know, and as we have heard in the particularly extreme recent example at Parkfields, the new commission will inevitably encounter situations where the welfare or rights of the individuals are at risk of being infringed by failures in the system. Therefore, it makes sense for the commission to have a clear duty to intervene. The point of the amendment is to have that firmly on the face of the Bill. The Minister’s answer will say whether that is the appropriate way to do this.
I am sure that the Minister will accept not only that we believe that the amendment is useful and sensible, but that this kind of thing is needed to give a sense of confidence, in this case, that the new Care Quality Commission is there to protect vulnerable individuals and to safeguard people, whether in the health or the social care setting. That is the purpose of the Bill. My particular concern, and the concern of organisations such as Age Concern and the CSCI, is that that duty is most needed in the care sector, particularly when dealing with the most elderly and most vulnerable people. It is interesting that the words “dignity, rights and welfare” have been used. Clearly, this is not just about basic rights and the duty to intervene for specific health care and safety-associated risks; there are also risks to people’s dignity, which it is essential to include in the Bill. The question is whether the Minister can convince us on whether that should be on the face of the Bill, or whether it is already there in essence. It is certainly something that must be specified and I look forward to hearing what the Minister has to say.

Kelvin Hopkins: The hon. Member for Eddisbury was kind enough to mention my interest in the Human Rights Act, which relates to amendments that I shall move later. It strikes me that the amendment is a softer version of my amendment and does not make specific reference to the Human Rights Act in its application to private care homes. If, for example, it said “Human Rights Act” in place of “regulations”, it would be the amendment that one would like to see. At some point during the progress of the Bill, one would hope for some guarantee that the rights of people in care will be protected in that way and that the Government are committed to them. I will be working hard, from my position, to try to secure that end. I wonder whether the amendment is a weaker version of my later amendment or a necessary addition to it. I would be interested to hear the response of the hon. Member for Eddisbury.

Ben Bradshaw: Clause 2 already makes it clear that the new commission must, in everything that it does, pay particular heed to the need to safeguard the rights and welfare of vulnerable people. Those priorities will be at the heart of the new organisation in deciding when and where it needs to act to help to assure the safety and quality of health and adult social care services. The Bill enables the commission to take action in response to breaches of any registration requirements, or breaches of requirements under any other legislation, including human rights legislation, that it thinks is relevant. However, we would argue that it should not be the role of the new commission to provide advocacy in individual cases, as is suggested by the amendment. We believe that it should be the responsibility of the commission to ensure that registered providers fulfil their responsibilities. Advocacy and safeguarding should primarily be the responsibility of other organisations. It should be the providers’ responsibility to deliver safe, quality care and the commission will take action, and if necessary close services, if they do not.
As we have discussed before, we have recently consulted on handling complaints and we proposed that commissioners—both PCTs and local authorities—should have a more vital role in ensuring that the processes work effectively. Where those responsibilities are not being met, the Bill gives the commission tough enforcement powers to follow up breaches of requirements and, when doing so, to inform other relevant appropriate organisations that have responsibility in these areas: for example, commissioners and in extreme circumstances the police. For example, where the commission identifies unacceptable treatment of a service user’s dignity by a provider, it may take action against the provider and may also inform the local authority, under clause 35, so that it can follow up issues accordingly.
Boards and/or senior managers of provider and commissioning organisations must themselves be held responsible for ensuring that the care they provide is safe. Registration requirements, which we will be consulting on during the passage of the Bill, will require those providing care to demonstrate that they secure the dignity, rights and welfare of those who use their services. Although I understand the reasons behind the amendment, we have already given the commission the powers it needs to tackle such breaches. The practical effect of the amendment would be to shift the onus of responsibility from providers and commissioners to the new commission and risks absolving them and overburdening the new commission. Therefore we cannot accept the amendment.

Stephen O'Brien: I am rather interested in the angle that the Minister has taken, because although he has decided that he does not want to accept the amendment, which I think he detects has a bit of broad support, he declared himself not wholly unsympathetic to the sentiment behind it, although he may think that it does not need the advocacy aspect.
Where is the underpinning of advocacy? We have touched on that in our discussion about independence. All Committee members remember that well in respect of the community health councils. I am sorry to pray that example in aid, but those bodies seem to provide a sensible parallel. There is an absence; the Bill simply relies on the voluntary sector to be advocates. I ask the Minister to reflect on that.
A coroner, for example, while obviously dealing with different circumstances, is looking into the cause of death in a lot of individual cases, but if he or she comes across aspects of the particular that need to be made available in the public arena for general understanding, not only does he or she have an absolute duty and right to do so, but that is strongly welcomed. The advocacy that is obtained by that process is a task that that independent body has been charged to undertake. Sometimes, it can make uncomfortable reading for all of us when the mirror is held up to us as a legislature and an Administration.
The hon. Member for Luton, North deftly described the amendment as possibly a softened version of something that was coming later. He was right to observe that it is a complementary and therefore necessary part of those two things, but I have no doubt that we will have opportunities to raise issues about the incorporation of a rights-based approach or even, to use his argument, the terms of the Human Rights Act 1998, later in our considerations. I did not draft the amendment in relation to the 1998 Act particularly because doing so would have caused certain consequential drafting issues, with which I am sure he is familiar. The amendment is a more effective way of trying to achieve some of the main, underlying principles that he is also trying to secure, with every sympathy. This matter has also exercised those representing the Liberal Democrats.
We will be able to return to the issue again. I am more hopeful than I might have been—I hope it is not hope over expectation—that the Minister will take time to reflect on this set of arguments. It would, of course, be quite wonderful if he intervened, or if he were to indicate that he will think about it and possibly bring back on Report something that would reflect what is becoming a bit more of a cross-party approach.

Sandra Gidley: Does the hon. Gentleman agree that in some ways, the amendment is about raising the bar? I was slightly alarmed when the Minister said that in serious breaches, the police will be called in. When it comes to the concept of dignity, there are many examples that are not criminal, would not seem serious enough to warrant that sort of involvement and may be deemed less important. His amendment is useful because, if it is accepted, the Bill will stress that that is something that the commission should have regard to. I do not think that the current wording is as strong as the wording that the hon. Gentleman has suggested.

Stephen O'Brien: I am grateful to the hon. Lady for that approach. Perhaps it will help to reinforce the point that she has helpfully made if I tell her about what I had in mind when I was looking at the amendment. It goes back decades now, but I was terribly struck by it, and have carried it around in my head—to be personal for a second, if the Committee will indulge me.
My mother was a nurse for many years, and I recall her saying about the issue of dignity, before it became a more commonly used, fashionable word, that the absolute quality of care was tested when, if a patient going to or coming back from theatre, is anaesthetised—this applied to both sexes, but she said it in relation to women in particular—the bed clothes on the trolley were not properly arranged and the patient was not properly covered. Even when they had no control over that, and may never have known that their personal dignity had been assaulted, it was the absolute test of professional care that a nurse would immediately go and arrange those blankets so that the personal dignity of that individual was maintained.
That is highly relevant to what I am trying to suggest here as a rights-based approach. The right to dignity is absolutely in the mind, even if it is not of the criminal variety, which would be of a different order of magnitude. I hope that that type of example underpins the genuine sense of professionalism and deep care that is recognised by all members of the Committee, and which we want to imbue as the standard against which everybody will be judged in all health and social care settings.

Kelvin Hopkins: I appreciate entirely that the natural human response is to accord other people dignity, and one would hope that that would always be the case. However, a culture is frequently established by law. Throughout history, particularly the last couple of hundred years, we have had to change the law time and again to ensure that people are treated properly. I have no doubt that the hon. Gentleman’s mother, and many others in my family who have worked in care circumstances, would behave well, but there are some who will not. To ensure that that culture exists and is universal, I think that the force of law is necessary.

Stephen O'Brien: I am grateful to the hon. Gentleman. Many other amendments reflect and bear upon people’s rights, I think that this area is patently absent from the Bill. It is within our capacity as a Committee to sort it out and correct it. I very much hope that this amendment, or one brought back in a different form by the Minister, having reflected on the discussion, on Report, will deal with the issue. That will be an ideal opportunity to do so. Failing that, I dare say that it will be picked up in another place in a more determined manner. I would encourage those in another place to do so, not least after reading what I have just said. I hope that we can readdress that matter.
We are not seeking to cast aspersions, or to assume that people, particularly those dedicated to care services, are not naturally focused on the dignity and the rights of the individual. However, as the hon. Member for Luton, North rightly said, so often, it is the statutory expectation, underpinned by the law, that means thankfully that the law has rarely to be used. It is setting a benchmark of behaviour and expectation that gives people the knowledge that they are doing the right thing. Having reflected on what the Minister has said and, with a glimmer of hope that he will think about the matter on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Derek Conway: With this it will be convenient to discuss new clause 1—The Commission’s duties —
‘(1) Notwithstanding the provisions of section 2(4), the principal duty of the Commission in carrying out its functions shall be to protect and further the interests of patients, service users and the public in relation to the quality and safety of care services.
(2) In carrying out its duty under subsection (1) the Commission shall encourage:
(a) the continual improvement of the quality of the activities to which its functions relate,
(b) the carrying out of such activities in a way that focuses on the needs and experience of those for whose benefit the activities are carried on,
(c) the involvement of patients and service users in the work of the Commission wherever the Commission considers this appropriate including, in particular, in the processes of review and inspection, and
(d) the efficient use of resources in the carrying out of the activities to which its functions relate.’.

Stephen O'Brien: New clause 1 sets out the duties of the Care Quality Commission to encourage continual quality improvement, service user and patient-focused care, the involvement of patients and service users in the CQC’s work and the efficient use of resources. I am sure that other members of the Committee will have been approached by the Picker Institute, which has sought the new clause, and we were happy to table it to ensure that the issues are properly considered and addressed. It improves and adds to the current description of the commission’s functions—part of an earlier debate—and the things to which it must have regard. It replaces clause 2(5) and goes beyond the emphasis in clause 2(3)(a) and (b) on the views and satisfaction of the public, by adding a focus on the experience and engagement of patients and service users. New clause 1(2)(a) and (d) raise the existing wording in clause 2(5) to the level of general duties.
New clause 1(2)(a) and (b) give the commission a strengthened mandate to promote continual quality improvement—something I thought we would all agree with entirely and want to see supported. The provisions will help to ensure that the regulator’s efforts and resources are not overwhelmingly focused on risk-based detection and the elimination of the poorest performing service providers, but also make a due contribution to the general improvement of services over time.
New clause 1(2)(b) additionally requires the commission to encourage service providers to focus not only on meeting the needs of service users, but also on their experience of using the services. Evidence shows that raising the quality of the service user’s experience contributes to increasing the effectiveness and improving the outcomes of care as well as user or patient satisfaction. That was based upon patient-focused interventions and a review of evidence by A. Coulter and J. Ellins of the Picker Institute for the Health Foundation in 2006.
New clause 1(2)(c) likewise reflects evidence that the involvement of patients increases the effectiveness of care and improves its outcomes. It reflects best practice in the regulation of health and social care services and the production of patient and user centred care. It will act as a general mandate to pursue that goal through various aspects of the work of the regulator, including developing guidance on complying with registration requirements, developing methodologies of performance measurement and review and improving the effectiveness of review and inspection activities. Without such a duty the models of user involvement developed by existing regulators may be lost in the transition, especially because budgets will be lower and if the board of the new commission is not drawn from among the existing regulators.
The Government have stated:
“The Care Quality Commission’s...priority will be to safeguard service users and help improve their experience of health and adult social care services - recognising that it can only do this effectively by involving them. It will be able to build on good work done by the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission, which all emphasise the importance of involving service users, and their carers, in their work”.
I hope that the Minister will be willing to amend clause 2 accordingly, which will be useful, I presume, in establishing the rights and duties that we are debating. There are a number of issues that we could read in from other debates on other clauses, but it is clear that, without wanting to take up the Committee’s time unduly, it is sensible to recognise that the proposal sits well with, and is consistent with, a raft of the amendments that we have already considered. I am sure that that consistency will be welcomed.

Greg Mulholland: Our debate on clause 2 has been useful, and although the Minister has not accepted any of the amendments, he will accept that there are concerns about the fact that the CQC’s duties are not laid out as fully as certain organisations would like.
Much of new clause 1 would help to clarify the point that the new commission should put the needs of patients and service users first, but the crucial provision, which we support, is subsection (2)(c). Currently, the commission will only “have regard to” the views of members of the public, but that phrase is almost meaningless. From my own rows with NHS trusts, I know that it is exactly the kind of phrase they can hide behind, claiming that they have “had regard” to all sorts of views expressed by the public. All too often, that becomes an excuse for not informing the public, never mind holding meaningful consultation with patient groups—there is not too much of that in the NHS nowadays.
It is therefore useful and important—indeed, fundamental—to the whole essence of the new CQC that we use the phrase
“involvement of patients and service users”,
rather than referring just to the general public. Empowering the patient is something the NHS does not do enough, and we have an opportunity to address that today. The Commission for Social Care Inspection has called patients and service users “experts by experience”, but we do not seem interested in hearing the views of those experts.
Patients and service users absolutely should have a defined and genuine role in the new system of inspection and regulation, and it is entirely sensible to make that clear in the Bill. Subsection (2)(c) of the new clause gives us the opportunity to do that, and including it in the Bill would send the clear message that we want patients and service users to be involved and that we see them as stakeholders in the health service and the care sector. They are not sufficiently involved at present, but the unamended Bill does not address that, so it represents a huge missed opportunity.
I look forward to hearing what the Minister has to say. We strongly support subsection (2)(c). We support new clause 1 in essence, but subsection (2)(c) is crucial if we are to achieve the kind of regulatory system that patients and service users deserve.

Angela Browning: I would like to speak to new clause 1 because it is important that the Bill sets out the commission’s duties in the same format as the new clause. The interpretation of the commission’s duties should not be left to guidelines or secondary legislation. It is important that the changes with which I think the Minister is presenting us are set out in the Bill, because they will vastly strengthen and improve outcomes for patients and service users.
I support the idea that, as I understand it, the Bill is not just about having an inspectorate that is like a police force, which goes around checking when things are wrong and filling in check-lists—in other words, giving an historical account of what has happened. Of course, if we are to protect patients and service users, it is important that inspections are carried out regularly and have teeth when they find that things are wrong. In tandem with that, however, it is important that we drive up standards, which must be for the benefit of service users. Service users and patients should feel confident not only that there is a combined inspectorate, but that standards and quality are improving as a result of its activities. It is important that that is made clear in the Bill.
There is a second aspect to new clause 1 that has not yet been mentioned. Many of us have dealt with members of staff working in both health and social care who themselves have almost become victims of the failure to drive up standards. Professional staff will appreciate the fact that the Bill defines the real focus of the commission, because that benefits not just patients and service users but those involved in social care and the NHS. That is very important. In an inspectorate, there is always a danger that people will think in silos; in other words, what is required of them is sometimes seen as divorced from some of the issues that we have mentioned in Committee, such as quality of life and protection for patients and service users. Clearly defining the duties of the commission will enhance what the Minister seeks to do in bringing together the inspectorates, so that the CQC is not just a police force but drives up the quality of care for service users.

Ben Bradshaw: Eagle-eyed members of the Committee will recognise the new clause as a bundling together of several of the amendments that we discussed at some length on Tuesday. I will not repeat everything that I said then except to say in summary that we believe that the essence and desires behind the new clause are already in the Bill, in particular the issue that has just been raised. I entirely agree with the hon. Member for Tiverton and Honiton about the need for one of the functions of the new commission to be continual improvement, which is clearly stated in subsection (5)(a). We debated that point at some length on Tuesday. Paragraph (d) of the new clause proposed by the hon. Member for Eddisbury would reintroduce the efficient use of resources, which his amendment sought to delete. I do not quite understand that. Perhaps it is just an innocent mistake. I think that the new clause is flawed and unnecessary.

Stephen O'Brien: In suggesting that we are re-debating something that we have already debated, the Minister does not quite understand the full import of what has been drafted. In the context of the somewhat unsatisfactory response from the Minister and the fact that this is a clause stand part debate, it is important to flag up the fact that as far as clause 2 is concerned, we have received no guarantees that the good work of the former regulators will be carried over in its entirety. We have had no guarantees of a general function for the commission. In the oral evidence, it was recorded that although leaving everything to regulation is the ultimate flexibility it is also the ultimate straitjacket because it depends on how the Secretary of State frames the legislation. We have had no guarantees of proper service user involvement and a national patient voice through Local Involvement Networks.
We continue to have concerns about the Care Quality Commission’s lack of focus on all, rather than just vulnerable adults, particularly carers—a point that was strongly reinforced by my hon. Friend the Member for Tiverton and Honiton. We have no guarantees of proper independence in clause 2(4) and we have had no separation of economic regulation from quality and value-for-money regulation. If we cannot have that, we cannot have new clause 1 either.
It is deeply disappointing that we have not managed to persuade the Minister. I had some hopes that we might. While it would not be appropriate to seek to divide the Committee on clause stand part, I want to register our intention to divide the Committee once we reach the appropriate moment on new clause 1.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Schedule 2

Transfers of property and staff etc.

Question proposed, That this schedule be the Second schedule to the Bill.

Stephen O'Brien: Clause 3 introduces schedule 2. It is the enabling clause for the schedule, which transfers property, rights and liabilities. The Minister told us on Thursday that although establishing the CQC will cost £7 million, as outlined in the regulatory impact assessment, the transition costs will be £140 million. He said:
“The £140 million includes the cost of redundancies, estates rationalisation and planned reduction of the operating costs.”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 120.]
I hope the Minister will take the opportunity, as we examine the schedule, to detail what that £7 million covers, the current estates and the length and value of their leases. He will want to take note of information provided to me that, in relation to the Healthcare Commission, Finsbury tower is on a long lease taken out by its predecessor organisation, the Commission for Health Improvement, running until 2020, with a lease-break clause in 2015. That goes straight to the heart of the point.
Will the downsizing be anything beyond that already planned by the various regulators? I hope it is clear that by the end of March, the CSCI will have closed two thirds of its inherited estate of 84 offices: 56 closed, 28 remaining. As I understand it, that is the position, but I have not had the chance to confirm it with the CSCI. Where will the CQC be based? Given the Prime Minister’s 2004 commitment to relocate 20,000 civil service jobs outside London following the Lyons review, how many jobs will be moved out of London? As an MP representing a north-west constituency, I can tell the Minister that that is of very significant interest to my area, and I dare say that other Members have a not dissimilar interest, although we from the north-west will compete for those relocated jobs.
Will the Minister outline the liabilities of the three regulators? That will be vital before they are disbanded and transferred. How many staff are employed by each regulator in England, with an inside/outside London split, if possible, in Wales and in Northern Ireland? That is the context and background, and it is absolutely vital that we understand the operative part of clause 3, which brings into force schedule 2.
Schedule 2 deals with transfers of property, staff and the rest, so how much of the property, rights and liabilities will revert to the Crown? What is the expectation of paragraph 1(4), which says:
“A scheme under this paragraph may contain provision for the payment of compensation by the Secretary of State to any person or body (other than one mentioned in sub-paragraph (1)) whose interests are adversely affected by the scheme.”?
The Minister will note that the paragraph is italicised, which means that it involves taxpayers’ money, so it is incumbent on all of us to find out what is intended. Does he have an estimate of the possible compensation? It is taxpayers’ money, so not only should he know, but we have a right to know, and so do the public. Has the amount been crystallised, or is it open to increase?
What is the process for obtaining the consent of Welsh Ministers under paragraph 1(6)? There is a very important point to be made at this juncture. There has been a puerile and crass attempt by the Labour party of Wales to try to undermine some of the amendments to the Bill, which quite rightly seek to put pressure on the Minister to decide whether he or Welsh Ministers will have responsibility for the legislation in Wales. Instead, the Government have kept the options open and not made a decision, and the legislation is all over the shop. They have got their little cronies in Wales to concoct a press release to try to undermine the amendments. Look at the evidence: only the Opposition have a Welsh MP on the Committee. The Labour Government do not, so they do not have somebody in the Committee who understands how the devolved powers work and can stand up for the interests of patients in Wales, be they in the health service or social care.
It was not only puerile but absolutely misplaced and deeply misjudged for the Labour party of Wales to start a nasty political spat when, in fact, only the Conservative party has managed to put on the Committee somebody who can stand up for the interests of Welsh people. I hope that my hon. Friend the Member for Preseli Pembrokeshire will have an extremely enjoyable time ensuring that he stands up for the people of Wales and his constituents where the Government have failed, given that they had the option to select somebody representing a Welsh constituency. We did so, and we are glad to have had that opportunity.
On paragraph 2, it will be important to ensure that the day that the Secretary of State is likely to appoint for the transfers to take place is named. Failing that, many things will be difficult to determine. I hope that the Minister will take the opportunity to spell out why paragraph 3 is drafted as it is with regard to transfers under the Transfer of Undertakings (Protection of Employment) Regulations 1981, which I would have thought would be of grave interest to all members of the Committee. We have a duty to understand the rights that attend upon transfers of responsibilities and employment expectations, which are beyond the power of those involved in legislating in this place.
Finally, how many posts has each regulator already cut since the inception of the Gershon review? How many staff have the regulators lost through wastage due to the anticipated merger of their responsibilities? Without those numbers, we can make no sense of the claims made by the Minister and his colleagues.

Stephen Crabb: It is a convention—and also heartfelt from me—to say what a pleasure it is to serve under your chairmanship, Mr. Conway.
As my hon. Friend said, the schedule provides for the transfer of the property, rights and liabilities of the various bodies affected by the Bill—in the case of Wales, the Mental Health Act Commission. I should like to ask the Minister a few brief questions about how the Bill applies to Wales, with a view to helping the scrutiny process. Those who follow closely the proceedings of the Select Committee on Welsh Affairs, as I am sure many do, will know that the quality of scrutiny given to legislation made here that affects Wales, particularly framework legislation and the new legislative competence orders, is a live question.
Although Members from all parties might feel comfortable devolving further functions and powers to Welsh Ministers as part of the ongoing devolution process, it is surely incumbent on us to ensure that there is the best possible scrutiny at an early stage. To that end, will the Minister update the Committee on the discussions that he and his officials have had with Welsh Assembly Ministers about how the Bill will apply to Wales? Specifically, what does he understand the property, rights and liabilities of MHAC in Wales to be? Did Welsh Ministers, during his discussions with them, identify any additional resources that they would need to be able properly to fulfil their new functions and powers under the Bill?
Given the benefit that the Minister anticipates the creation of the new independent and integrated Care Quality Commission will achieve in England, my main question and concern about the application of the Bill to Wales is how comfortable he is about investing Welsh Ministers with many of the relevant functions, and the extent to which he thinks that the spirit of independence that has been discussed in relation to the CQC in England will be observed in Wales. Perhaps he will update us on what Welsh Ministers have said and on how they intend to use the powers to ensure that people in the Principality benefit to the same extent as those in England from the new provisions in the Bill.

Ben Bradshaw: I regret that I do not have to hand the exact figures on liabilities and the length of the leases of various buildings, but I have written to Committee members following last Thursday’s sitting when evidence was taken about costs. If the Committee so desires, I can hold on to that letter a little longer and add some of the detail that has been requested, or send the first letter and include in a further letter some of the issues of liability in as much detail as we can gather in the time. Does the hon. Member for Eddisbury have a preference on that?

Stephen O'Brien: I am most grateful for the Minister’s offer, and indeed for allowing us to express a preference. It would be very helpful to us, in getting a handle on the issue, if he would send the letter that he has taken the trouble to put together as soon as possible, and send a further letter when the other details are to hand, so that we can give the matter proper consideration.

Ben Bradshaw: On the questions about Wales, hon. Members will know that the Care Quality Commission covers England only, but the MHAC is, I am advised, covered in clause 48(3). Again, I shall perhaps add a few lines on Welsh issues for members of the Committee, although we have liaised closely with Ministers and colleagues in the Welsh Assembly Government throughout the development of policy on the Bill. They are happy with the provisions, and so are we.

Anne Milton: Will the Minister give us—he did not mention this—the figures on the loss of staff? That came up during evidence sittings. It is a crucial matter in the transition period and it is extremely important for the Committee to hear how many staff have already been lost.

Ben Bradshaw: Yes. I am happy to do that.

Question put and agreed to.

Schedule 2 agreed to.

Clause 4

“Regulated activity”

Question proposed, That the clause stand part of the Bill.

Stephen O'Brien: This is one of about five affirmative resolution clauses in the Bill, and it concerns the regulated activity with which we must now be concerned as we move on to consideration of chapter 2. The Committee must effectively have another meta-debate on this clause, if I can put it that way, given that the real meat will be in the regulations. Clause 90 tells us that
“‘prescribed’ means prescribed by regulations”
made by the Secretary of State. The clause also defines the geographical scope of regulations—England, mainly.
While both the Commission for Social Care Inspection and the Healthcare Commission cover England alone, as the Minister has just mentioned, the Mental Health Act Commission currently oversees the operation of the Mental Health Act 1983 in England and Wales. It was appropriate for us to raise the point about Wales in the previous debate, because it was covered by schedule 2, but I noted—and it is relevant to the present matter too—that the Minister has undertaken to return to some of the points that were raised, both in writing, which is very helpful, and when we come to debate further clauses and amendments.
The Bill gives the functions of the MHAC pertaining to England to the CQC and those pertaining to Wales to Welsh Ministers. Subsection (2)(a) limits the scope of the CQC to England alone. The Minister has just made a commitment that he will seek to help the Committee as much as he can. What assessment has he made of the division of staff and intellectual property arising from that split? I hope that, as he and his officials are noting the process of these inquiries, the intellectual property rights will also be given proper consideration. They are an asset that is often overlooked but absolutely vital. Coming from a commercial background, I can say that intellectual property rights are often used most of the time in any transfer negotiation by way of friendly or hostile purchase.
Subject to the following provisions of clause 157, the Bill extends to both England and Wales. I hope that the Minister will have checked by the time we reach that clause that there is no conflict in the drafting. I put it no higher than that, but it is certainly worth checking.
Clause 4(2)(a) limits prescribed activities to those connected to health or social care—the definition of which we will debate under clause 5—
“in, or in relation to, England”.
Can the Minister tell the Committee the force of the phrase “in relation to”? As an MP whose constituency has a Welsh border and much of what is rather interestingly called “health tourism” across that border, I am interested in what protection the clause gives to my constituents who are treated and cared for in Wales—often very well, I have to say. Obviously, for many of my constituents, being treated in Wrexham Maelor hospital involves travelling a much shorter distance than would be involved in travelling even to the Countess of Chester hospital in the city of Chester.
What right of appeal, on behalf of my English constituents, does the clause give me, as their representative in the House? I have frequently attempted to ask the Secretary of State for Wales what happens if things go wrong for my constituents in a health or social care setting in Wales. He has immediately referred me to the First Minister of Wales, who has told me that I have no standing with him and he has absolutely no obligation to respond to me, and does not. Therefore, I have no way of representing my constituents through the devolved powers, which in effect create a form of devolved apartheid when it comes to accountability.
What impact will this provision have on NHS patients seeking health care abroad—I am not now talking just about going across borders within the United Kingdom—under the EU’s attempt to open up the health care market? The Minister and all his colleagues will be very conscious of the recent debate that has been had, mainly in the press, because the EU was supposed to publish draft legislation on 20 December just gone, but has delayed it until early 2008, so we are in live time. That is in the light of anger from, among others, our very own British Ministers. We await that publication with bated breath. It will be absolutely germane to this part of the Bill and the way in which the Bill can operate.
The clause also, rightly, prevents the CQC from encroaching on the role of Ofsted in the inspection of children’s services. Ofsted inspects, among others things, children’s homes and residential special schools. Can the Minister confirm that this provision will not impact on the commission’s ability to report on children and young people being treated on adult mental health wards? As he is well aware, that is a scandal that continues to persist under this Government. Given in particular the recent report on learning difficulties services published by the Healthcare Commission, what will he do to encourage close working between the two bodies in terms of service users, providers and individual staff in the sector?
I note the Minister’s genuinely helpful alert to the Committee last Thursday about joint working. He brought our attention to clause 64 and schedule 4. However, my understanding of clause 64 is that it requires the commission to promote co-ordination of reviews and assessments, not of day-to-day processes. Schedule 4 comes closer to supporting joint working in processes, although it does not require it in the same terms as clause 64. Again, I hope that that provides genuine food for thought for the Minister and his officials, because I suspect that there will be time to think about it before we get there.
In relation to clause 4(3), I hope that the Minister will give us an answer as to why he has decided to enshrine these three aspects explicitly in the Bill. It is not an exclusive definition of “connected with”, but it seems to particularise when the rest is left to more generic definition. What assessment has he made of the division of staff and intellectual property arising from the division of the MHAC? Given that the clause applies to England and Wales, should subsection (2)(a) reflect that? What does “in relation to” mean? Will Ofsted and the CQC work together? Why has he sought to define, although not exclusively, “connected with” in the terms outlined? Those are the questions that I hope he will seek to address as we consider the clause.

Ben Bradshaw: This may not be my job, but I slightly flinched at the hon. Gentleman’s use of the term apartheid to describe some of the complexities that have arisen from the democratic decisions taken in this country to grant devolution to Wales, but I will leave that issue with him. Apartheid, in my view, was a despicable, racist-based policy, deliberately implemented by the nationalist Government in South Africa. It is not an appropriate term to refer to these complexities.

Stephen O'Brien: I was born in east Africa, and therefore had to live through and survive and challenge the whole of the apartheid approach, but the Minister will be aware that the derivation of the word has nothing to do with racism. It is to do with there being two different sides of a similar issue and it was then hijacked to have a meaning in political terms, which is what he might have described. He is no better advocate than I am for being anti-apartheid in the sense that the term was used in South Africa, but I was using the term here in its genuine rather than ascribed form.

Ben Bradshaw: I take the hon. Gentleman’s point, but I have noticed that a number of Conservative Members use the term apartheid to describe the cross-border complexities caused by devolution. I ask him to bear in mind how the use of that term would come across to most South Africans.
The clause allows regulations to be made to define the activities that need to be registered with the Care Quality Commission. That will be carried out through regulations, so the list of regulated activities can be revised as new models of service provision evolve. This is particularly important, so I intend to spend a little time outlining it.
We want to encourage flexible and innovative ways of delivering services to be developed. I do not want the registration system to be a barrier to that. Ofsted is responsible for regulating children’s social care. To avoid the possibility of services currently registered with Ofsted having to register twice, the clause specifically excludes any services that are registered with Ofsted from the definition of “regulated activity”, but of course they will have to work closely together.
We will be consulting very soon on the activities that are to be regulated by the Care Quality Commission. We expect that most service providers currently regulated by the Healthcare Commission or the Commission for Social Care Inspection will be required to register. These would include independent sector health care providers and providers of adult social care that are currently required to register. For the first time, NHS trusts—including ambulance trusts—NHS foundation trusts, and primary care community services will also need to register. Under the current arrangements, because NHS care is regulated and inspected differently from other services, it is not always easy for patients to compare NHS services with those of other providers. It also creates a barrier to joint working and means that private providers providing some statutory services have to comply with two regimes. Creating a unified system of regulation across health and adult social care providers from all sectors will create a fairer playing field. It will also assure the general public that whichever provider they use, all services will be required to meet the same national safety and quality requirements, and will be subject to the same enforcement regime if they fail to do so.
In respect of the hon. Gentleman’s question on assets, as I said in my answer to a previous question, I will include whatever information we can give the Committee on assets in writing.
On his question about cross-border issues and the term “in relation to”, I suspect—I will confirm this in writing—that this may include examples in which the service is provided in Wales, although it is commissioned in England. That may be an example where we would have to use the phrase “in relation to English”, but I will happily confirm that in writing.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

Clause 5

“Health or social care”

Kelvin Hopkins: I beg to move amendment No. 81, in clause 5, page 3, line 12, at end insert
‘and section [Application of Human Rights Act 1998]’.

Derek Conway: With this it will be convenient to discuss the following: Amendment No. 82, in clause 157, page 103, line 29, at end insert—
‘( ) Section [Application of Human Rights Act 1998]’.
New clause 3—Application of Human Rights Act 1998
‘Any person providing health and social care within the meaning of section 5(2) and section 5(3) is deemed to be a public authority in relation to the performance of those functions for the purpose of section 6(3)(b) of the Human Rights Act 1998 (c. 42) (acts of public authorities).’.

Kelvin Hopkins: I am pleased to have the opportunity and, indeed, the responsibility, of speaking to this important group of amendments and the new clause. They would bring private and voluntary sector health and social care providers within the scope of the Human Rights Act 1998.
Thousands of older and disabled people do not have access to the protection that they were promised under that Act after a legal loophole was created by a series of judicial rulings. The amendments would rectify that error, and ensure that bodies that provide health and social care as defined in the Bill would be required to act compatibly with the rights and freedoms contained in the Human Rights Act when performing their functions. The measures would close the current loopholes in the 1998 Act that mean that it does not cover people who receive care in a private or charity care home. Although that would change the status of private and charity sector providers of health and social care in relation to the 1998 Act, all state services, including NHS treatment and publicly run residential care homes, are within the scope of the Act. The amendment would ensure that people who receive contracted services are guaranteed the same levels of protection and rights to redress as people who receive services from the state.
Improving the quality of health and social care must be a high priority for the Government, particularly because I support them. It is essential that all health and social care services provide good quality care that respects the rights and dignity of all older and disabled people. The Human Rights Act applies to all public authorities and other bodies when they are performing
“functions of a public nature”.
However, in 2002, a court ruled in the Leonard Cheshire case that private voluntary sector care providers, including those caring for locally funded clients, should not be considered as performing public functions. In a recent test case in the House of Lords, YL v. Birmingham city council, their lordships confirmed by a majority of three to two that narrow interpretation of the Human Rights Act. The Government intervened in the YL case and made clear their desire to see private and voluntary sector care providers fall within the scope of the Act.
On Second Reading, the Government said that they would address the lack of human rights protection for older and disabled people in care homes by regulation. My hon. Friend the Minister said:
“We hope to be in a position to tackle that in the forthcoming Green Paper on the British Bill of Rights and duties, which would allow us to deal with the matter in the wider context of the public authority definition. Including that definition in the Bill causes a problem because it is so vast. However, we will strengthen the regulatory powers in the measure to ensure that the care quality commission can enforce the requirements in line with the relevant provisions of the Human Rights Act.”—[Official Report, 26 November 2007; Vol. 468, c. 105.]
That expresses the hope of including something in a Green Paper, not a commitment to including the provision in the Bill.
Although the Government’s clear commitment to solving what is a pressing social problem is welcome, the proposed solution is inadequate. It is clearly important to promote the centrality of human rights to the new regulatory framework. However, regulations under the Bill cannot be used to close the loophole in the Human Rights Act, because regulations—secondary legislation—cannot be used to change the meaning of primary legislation. Even if the regulatory route envisaged by the Government provided the Care Quality Commission with greater powers than those already conferred on public authorities by the Human Rights Act, it would provide no direct remedies against care providers for victims of human rights violations. The existence of legal remedies drives broader cultural change, as I said, so giving people the confidence to assert their rights would provide service providers with an extra incentive to protect and fulfil them.
The provisions in the Bill will allow care home residents or their representatives to complain to the care home but, in many cases, they will not be able to take their complaint further. The new commission will not have the power to investigate complaints from individual residents. The only other possible residual route is to make a complaint to the local authority or to use the NHS complaints procedure, depending on the body funding the placement. However, the scope of those parallel complaints procedures is limited to their statutory functions and does not extend to care standards. For example, a complaint that related to an arbitrary eviction engaging the right to respect the home life could not be investigated under the statutory complaints procedures. Access to the health service or local government ombudsman would then be precluded for the same reasons.
If the law is not amended, there will continue to be the prospect of significant human rights violations for which the victim has no effective remedy under domestic law. It is vital that all disabled and older people be given proper access to a legal remedy for all human rights abuses. Following the YL judgment, it is clear that only primary legislation can secure full access to justice for older and disabled people under the Human Rights Act. Previously, the Government’s view was that the creation of the loophole was unintended and that all care home residents should have a legal remedy against care providers under the Human Rights Act.
When introducing the Human Rights Act, the then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), said that “public authorities” should extend to private providers fulfilling public functions. He used the following words:
“The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge on private individuals.”
He went on to say that the Human Rights Act
“had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.” —[Official Report, 16 February 1998; Vol. 306, c. 773.]
Following the YL judgment, the then Parliamentary Under-Secretary of State with responsibility for human rights in the Ministry of Justice, the Baroness Ashton of Upholland said:
“I am particularly interested in investigating how to use a human rights framework to ensure that all older people in care are looked after properly...The noble Lord will be aware that one of the issues considered in the judgment was whether the Human Rights Act applied only to those citizens in care homes that were publicly funded. My ambition is to cover all elderly people in care, and I intend to do so.”—[Official Report, House of Lords, 27 June 2007; Vol. 693, c. 597.]

Angela Browning: I am listening with a lot of sympathy to what the hon. Gentleman is saying, but will he clarify something? In recent years, direct payments have been introduced and used by people who would certainly qualify under clause 5(3) as individuals needing personal care and other practices. In the case of direct payments, although the funding comes through the local authority, it is at the discretion of the local authority—and, often, just by mutual agreement with the local authority—that the person who needs the care becomes the employer, particularly those with learning disabilities and such conditions. Therefore, they legally contractually employ the person who carries out the service or the care for them, although the core funding comes via social services. In drafting the amendment, does the hon. Gentleman think that the people providing care through a direct payments grant to those needing care would also come within the scope of the clause, or does he think that because they are legally the employer, employment law and other legislation would kick in instead?

Kelvin Hopkins: The hon. Lady makes an important distinction but provided that the effect is to ensure that everyone in any type of care, however it is contracted, is protected under the Human Rights Act, I am happy. The amendment may need further amendment at a later stage during the progress of the Bill, but my intention is to ensure that everyone is covered effectively by the Human Rights Act.
Nine out of 10 care homes are within the private or charitable sector following a range of privatisations over many years. However, under the law as it stands, the scope of the Human Rights Act does not directly extend to those care homes, which means that residents of independently run care homes who experience human rights abuses cannot use the Act to challenge the care home provider. There is widespread and serious concern from, among others, the British Institute of Human Rights that such a situation exists. The institute has convened a group of more than 15 disability and human rights organisations—some of which have provided separate briefings to the Committee— including residential care providers, as well as statutory bodies that share a concern about the protection gap. I ask the Minister to support the amendment in order to close the loophole in the law and to ensure that the Human Rights Act protects older and disabled people receiving health and social care services, regardless of the provider. It is unacceptable that because of changes—perhaps moving from a public home to a private provider—the provisions of the Human Rights Act should be removed from someone in care.
The evidence shows that closing the loophole is necessary and urgent. A number of cases show a stark cruelty and lack of care. We have concerns about malnutrition and dehydration, including meals being taken away before the patient can eat them, or insufficient help with eating and drinking. There is also a lack of privacy, dignity and confidentiality. The hon. Member for Eddisbury spoke of people who had just undergone operations and who were still unconscious not being treated with dignity. Indeed, some individuals are being left in their own urine or excrement. Neglect and carelessness is another problem; I include poor hygiene and the rough handling of patients, with bullying, patronising and infantilising attitudes being taken toward older people.
I have a list of real examples but I shall not read them out in full. People are being neglected, and becoming bedridden and developing pressure sores. As we heard earlier, people are being over-medicated to keep them docile. Chronic understaffing is another problem; indeed, in one home a single male carer was left on his own to look after 30 older women. That is not acceptable, and I hope that other members of the Committee would agree.

Sandra Gidley: I am sympathetic to the argument that the hon. Gentleman is developing, but would not the single carer in charge of those 30 people be picked up under the Care Standards Act 2000?

Kelvin Hopkins: I am sure that they would—one hopes that they would—but as I said earlier, the Human Rights Act is important, in that it sets a framework of law to underpin people’s rights and to ensure that the culture changes. When such things happen—inspectors cannot be there all the time—people should know that the regulations are backed by the force of law.
As I said, I could mention many other cases, and there are other issues concerning self-funding care home residents. The amendments would also cover care home residents who funded their own social care. We believe that it is vital to protect all older and disabled people, regardless of who pays for their care.
There is a danger in drawing artificial distinctions between publicly and privately funded residents, as Lord Mance noted in his ruling in the YL case. He implored care homes to
“view and treat all such residents with equality”.
He concluded his judgment by sending this message to Parliament:
“if additional protection is to be achieved by statutory means, it is no matter for regret that this should be done without distinguishing between residents in one and the same care home who on the one hand arrange and fund their own care and accommodation and others who on the other hand benefit from local authority assistance to arrange and fund such care and accommodation.”
Other issues will need to be debated later, but I believe that this question is of fundamental importance. I hope that the Government will accept the amendment. Simply expressing a hope that we can bring in regulations or legislation at a later stage is not sufficiently strong. I hope that my hon. Friend the Minister will undertake today to guarantee that the Bill will include a guarantee that the Human Rights Act 1998 will apply to all residents of care homes, whether in the private or the public sector. I rest my case. I hope that others will support me.

Stephen O'Brien: I am grateful to the hon. Member for Luton, North for tabling the amendments and the new clause. We heard a genuine exposition of the reasons why the force of the point carries such impact with so many Members across the House. I pay tribute to him for being a consistent and sincere advocate of the centrality of human rights, which are core values of what we think and what we pass as law.
The hon. Gentleman will be aware that some of what his amendment would achieve was the aim of a private Member’s Bill brought in during the previous session by one of his hon. Friends. However, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird), who was then the Minister with responsibility for such matters, chose to talk it out—[Interruption.] The Government Whip continues to chunter from a sedentary position in a partisan fashion. We said at the time that we have always wanted the extraordinarily complex issues raised by the amendment to be considered in detail in Committee. I have a lot of sympathy with the hon. Member for Luton, North when he said that the Government’s response, which was effectively to park the matter until a Green Paper on rights can be produced, is insufficient.

Kelvin Hopkins: It seems clear that the Ministry of Justice is committed strongly to that matter, as, too, I hope, is my hon. Friend the Minister.

Stephen O'Brien: Indeed. Joined-up government is always a hope, and I, too, noticed what the Ministry of Justice said.
The matter must be considered in detail because, as the hon. Gentleman made clear, a lot of very important legal, conceptual and detailed drafting needs to be done when incorporating the Human Rights Act into legislation. The consequentials and complexities are extremely challenging, which is why we have said that the matter needs to be considered in Committee, for which this Bill seems to offer an ideal opportunity. That would forestall the inevitable delay before the Ministry of Justice produces a Green Paper and Bill to provide for the proposal before us. We hope, therefore, that the Government will consider the matter very carefully and provide some details for us to discuss.
Having said that, the hon. Gentleman will appreciate that—this is consistent with what we said during consideration of the private Member’s Bill that I just mentioned—although we are interested in, and sympathetic to, many of the concepts in his proposal, in the absence of detailed Committee consideration, it would be inappropriate to support his amendment to incorporate en bloc the Human Rights Act. That would have huge ramifications and present many complexities and challenges. However, I hope that he is successful in persuading the Minister to use this Bill as a great forerunner to the detailed debate required to deliver on his wholly laudable objectives.
At a personal level, I should add that it was the wonderful United Nations charter enshrining human rights that first led me to recognise that I had any political bones in my body, because it gave rise to, and was the provenance for, the wonderful organisation that is Amnesty International, to which I gave many years of dedicated work.

Sandra Gidley: We on the Liberal Democrat Benches support the amendment; in fact, we feel so strongly about it that we added our names to it. I hope that the hon. Member for Luton, North does not do the usual thing, beloved of some of his colleagues, and withdraw the amendment, because it would be useful to put it to a vote. I hope that this will not be yet another missed opportunity. Similar amendments were tabled during the passing of the Equality Act 2006, at which time the subject was kicked into the long grass of forthcoming reviews, which have now taken place.
As has been highlighted, another opportunity was missed during the consideration of the private Member’s Bill that the hon. Member for Eddisbury mentioned. That Bill was not enthusiastically or even lukewarmly taken up by the Government. I am disappointed that, although we have an opportunity to do something positive, yet again the subject of human rights—this time of people in care homes—is being kicked into the long grass with the mention of a forthcoming Green Paper.
All the time that we wait, there is a lack of clarity around the issue, despite the well-meaning attempts to incorporate the theme of human rights in some parts of the Bill. The consequence is that, in the meantime, it will be very difficult to tackle some of the problems that have already been highlighted by the hon. Member for Luton, North, who made a number of important points, which I will not waste the Committee’s time by repeating.
The recent report of the Joint Committee on Human Rights highlighted that residents in care homes were among the people most vulnerable to human rights abuses. That report outlined many of the concerns raised by the hon. Gentleman earlier. Although I took issue with one of the examples that he mentioned, it seems to me that every day there are examples of practices that are regarded as routine, such as the over-medication that was mentioned earlier, or making continent patients sit around wearing incontinence pads because staff cannot be bothered to take them to the toilet at the appropriate time. Tackling that type of practice will not be a priority when the new commission is being set up and it really beholden on us to try to tackle it.

Anne Milton: I wonder whether the hon. Lady would agree that it is a shame that tackling that type of practice would not be a priority. She talked about raising the bar earlier, but if one raises the bar on the apparently small things the overall culture of the organisation improves and standards would go up too.

Sandra Gidley: I agree entirely. I must also say at this point that there are a lot of places that deal with that kind of problem well. We all go into care homes as part of our jobs and we get a feel for who is doing things well. However, there is not any real way that we can tackle some of these problems.
It is about raising the bar and I agree with the hon. Lady that it would be a shame if tackling that type of practice were not a priority. However, the new commission has a huge amount of work on its hands and there is a lot for it to get its teeth into. It will concentrate on the must-dos. If tackling that kind of practice does not appear in the Bill as a must-do, in the early days at least, it will not attract the attention that it deserves.

Brian Jenkins: I support my hon. Friend the Member for Luton, North, because I find it quite difficult, coming from a party of equality, to understand how we cannot have equality in the whole country when it comes to the right of appeal. I find it very difficult to understand how a person can be placed in an old folk’s home run by a local authority and be covered by the Human Rights Act, but, through no fault of their own, if they are placed in a privately run home, because the local authority fails to provide that home, they are not covered by the Human Rights Act. I find it even more amazing that, if someone is unfortunately not covered and funded by a local authority but has to make their own provision, they are placed at an even greater disadvantage and have even fewer safeguards.
Although I recognise that the hon. Member for Eddisbury said that it is a legal nightmare when we start to walk down this path, I do not think that the difficulty should dissuade us from doing so. I hope that my hon. Friend the Minister will find the right words at the present time to give an assurance to the members of the Committee that we will not walk away from the problem and that we will start to make an advance in dealing with it and to put a framework in place attached to the Bill, or else provide a very early opportunity for the House to vote on the issue, so that we can cover those vulnerable people and thereby close what I feel is a disgraceful episode: the level of inequality afforded to citizens in our country.

Ben Bradshaw: I would like to say at the outset that I have a great deal of sympathy with my hon. Friend the Member for Luton, North and the motivations behind the amendment that he has tabled. However, I hope to persuade him, for a number of reasons, that this is not the most satisfactorily or most legally watertight way of addressing the issue now.
I reassure my hon. Friend the Member for Tamworth and the hon. Member for Romsey, who spoke on behalf of the Liberal Democrats, about the safeguards that the Bill will put in place in respect of care homes—particularly private care homes. I am happy to repeat the assurance that the Government have made it clear that they are committed to amending the Human Rights Act to ensure that all independent providers of publicly funded care homes are covered by it. We have agreed with the Ministry of Justice—we are at one on this—that we will use the Bill to strengthen the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the relevant provisions of the European convention on human rights. That will apply to all care providers under the Bill.
In the information that I have sent to Committee members, I have already outlined some examples relating to registration. If my hon. Friend the Member for Luton, North and other Committee members read that, they will see that we indeed fulfil the commitment in honouring the provisions not just of this Bill, but in wider legislation, including human rights legislation.
We are also underlining the fact that the purpose of regulation is to establish essential minimum requirements that protect people’s dignity and human rights. I have said that before and I will continue to do so. We will be consulting on the nature of the regulations during the passage of the Bill. I invite hon. Members to come back to the regulation requirements when those are discussed. Regardless of the scope of the remedies provided under the Human Rights Act, we expect all providers of regulated health and social care to respect the human rights of all service users.
As I am sure my hon. Friend will be aware because he has followed this matter closely, there is a problem with the extension of the Human Rights Act to contractual arrangements made by individuals that are strictly private, because it also contains a right to privacy. A far more sensible debate is going on, which we need to have in full, about whether the Human Rights Act is, legally, the best framework for regulating entirely private contracts. The hon. Member for Eddisbury acknowledged the need to have a full and proper debate on that matter. That is one reason why my hon. Friend’s amendment would not be the best or the most legally watertight way of proceeding.

Angela Browning: If the Minister does not accept the amendment under the terms already published in the Bill, particularly clause 5(3), perhaps I could raise with him the point that I have already made to the hon. Member for Luton, North. Subsection (3) defines what “social care” includes. What is the Minister’s understanding in respect of those people who contract privately with others, who receive direct payments to provide a package of care or a service where the contract in employment terms is directly with the beneficiary of that service and the individual they contract with? Employment law then comes into it, because there is a proper contract of employment, albeit the funding is public funding coming through social services. What are his thoughts on that matter, if he will not accept the amendment?

Ben Bradshaw: We will debate clause 5 later. I will happily address that question then, if I may, because my understanding is that because a direct payment would involve a state role—that is, state funding—it would fall under the auspices of the Human Rights Act. I will happily clarify that for the hon. Member for Tiverton and Honiton when we debate clause 5.

Stephen O'Brien: I am sure that this is relevant to whatever point that the Minister is addressing. Would he try to provide the clarity that we all need to understand why the Government have tabled Government amendment No. 123 and Government new clause 7 pertaining to clause 157? I understand that those Government amendments would extend the closing of the loophole on the application of the Human Rights Act to private care homes for the purposes of Wales, Scotland and Northern Ireland but not for England. There seems to be a patent inconsistency, and I hope that the Minister will address his comments to that point, which has been a source of our concern.

Ben Bradshaw: Again, I shall happily and categorically clarify that later, but I imagine that amendments address the need for consistency throughout the United Kingdom, not the substance to which the hon. Gentleman referred.
The Government’s other fundamental problem with the approach of my hon. Friend the Member for Luton, North to the amendment is, as he acknowledged, that public authority goes much wider than just care homes. We are working closely with the Ministry of Justice to find a more comprehensive and sustainable solution to the problem. As my hon. Friend acknowledged, the Ministry is committed to addressing the issue and is bringing forward consultation on the Bill of rights and responsibilities. It will draw on the wide range of expertise in that process in a genuine spirit of consultation. I am sure that both he and other Committee members will want to take an active part in that consultation.
I have some difficulty with the Conservative party’s approach. I thought that its commitment to the Human Rights Act was at best lukewarm, and there was a suggestion some time ago that it would get rid of the Act, but again that may have changed.
In response to my hon. Friend, I hope that he will understand that while I have great sympathy with the motivation behind his amendments, we do not believe that in this context they are the right way of achieving the aim that we all share: protection of people, particularly vulnerable people, in all care homes, including private care homes. In that spirit, I ask him to reflect, and to withdraw his amendment.

Kelvin Hopkins: May I say at the outset that I remain convinced that we should have a commitment in the Bill to the application of the Human Rights Act to residents in private care homes. It is clear from what the main Opposition party said that there is not sufficient support in the Committee to guarantee success for my amendment at this stage, but I hope that at later stages of the Bill the Government or others will table an improved amendment that the Government will accept.

Stephen O'Brien: I hope that the hon. Gentleman took note of my comment about the Government’s amendments to clause 157. It may take us a little while to get there, so the Government will have an opportunity to discuss with him whether, for consistency, England might be included. The Minister’s response to the intervention seemed to be that it would bring consistency to Wales, Scotland and Northern Ireland. My point was that the Government seem to have favoured Wales, Scotland and Northern Ireland in the incorporation of rights, but to have excluded England. That seems extraordinary, and there may be an opportunity for the hon. Gentleman to pursue his ideas.

Kelvin Hopkins: I thank the hon. Gentleman for making that important point. My concern is not to reduce pressure on the Government to introduce legislation soon to give effect to the objective of my amendment, so that care home residents in my constituency and elsewhere are protected and have the same rights as those in public care homes.
People have come to my surgery with problems in private care homes that have had to be addressed, and one was closed not so long ago. Such issues will not go away until private care homes are covered by the Human Rights Acts. The industry may not be keen on that, because it suggests that there will be greater pressure to perform well, and to behave decently to all their residents. Some care homes do a good job, and I am not disparaging those that do so, but clearly some do not. We need the force of law to ensure that the human rights of private care home residents are guaranteed to the same level as those in public care homes.
I shall reluctantly withdraw my amendment, but I hope that improved amendments will be tabled during the Bill’s progress in both Houses, and I hope to speak on them and to pursue the matter. It would not be helpful for my amendment to be defeated, but I hope that the Government will not just talk about future, more general legislation, but include in the Bill the rights of those in private care homes. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

It being One o’clock,The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at twenty-two minutes to Five o’clock.